ONKARLAL NANDLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals by special leave raise a short question of construction of certain provisions of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the State Act). It is a pure question of law and does not depend for its determination on the distinctive facts of any particular case out of this group of appeals but in order to arrive at a proper determination, it is necessary to consider this question in its proper perspective and therefore the broad constellation of facts in which the question arises may be briefly stated.

(2.) We will confine ourselves only to the facts of Civil Appeals Nos. 207-208 of 1983 for the facts of this appeal are broadly similar to the facts of the other appeals comprised in this group. The assessee is a partnership firm which carries on business in grains, oil seeds, poppy seeds, etc., in Bhawani Mandi in District Jhalawar in the State of Rajasthan. The assessee is a registered dealer under the provisions of the State Act and is also registered as a dealer under the provisions of the Central Sales Tax Act, 1956 (hereinafter referred to Central Act). The assessment years with which we are concerned in this appeal are assessment years 1975-76 and 1976-77. During these two assessment years. the assessee purchased poppy seeds against Declarations in Form No. S.T. 17 furnished to the selling dealers. These Declarations in Form No. S.T. 17 stated that the assessee was purchasing the poppy seeds for the purpose of resale within the State. The assessee, after purchasing the poppy seeds against these Declarations, resold the same to different buyers under contracts executed by and between the assessee and the buyers at Bhawani Mandi. It was not disputed that at the date when these contracts were made between the assessee and the buyers, the poppy seeds forming subject-matter of the contracts were specific goods in deliverable condition situate in Bhawani Mandi and the property in the poppy seeds accordingly passed to the buyers under the contracts in Bhawani Mandi. The resales of poppy seeds to the buyers were therefore, according to the assessee, sales within the State and it could not be said that the poppy seeds purchased by the assessee were used by it for any purpose other than the one mentioned in the Declarations furnished by the assessee to the selling dealers. But while completing the assessment of the assessee to sales tax for the assessment years 1975-76 and 1976-77, the Commercial Tax Officers took the view that the resales of the poppy seeds effected by assessee were sales in the course of inter-State trade and commerce and were therefore not sales within the State and hence the poppy seeds purchased by the assessee were used for a purpose other than that mentioned in the Declarations furnished by the assessee to the selling dealers and consequently the purchase price of the poppy seeds was liable to be included in the taxable turnover of the assessee. The Commercial Tax Officer accordingly passed two assessment orders on 22nd Sept. 1982, one for the assessment year 1975-76 and the other for the assessment year 1976-77 and included the purchase price paid by the assessee for the poppy seeds in the taxable turnover of the assessee. The assessee thereupon preferred the present appeal by special leave directly to this Court.

(3.) Now at the outset we should like to make it clear that ordinarily we do not entertain an appeal directly against an order made by an officer in the hierarchy, when there are other remedies by way of appeal or revision provided to an assessee under the statute. Here the assessee could have preferred an appeal against the order of assessment made by the Commercial Tax Officer and he could have then gone in revision to the Board of Revenue and thereafter to the High Court under Art. 226 or 227 of the Constitution and then, if he was aggrieved by the order passed by the High Court, he could come to this Court under Art. 136. We would have ordinarily insisted on the assessee going through this hierarchy of judicial process and declined to entertain the petition for special leave directly against the order of assessment made by the Commercial Tax Officer. But we were informed by the learned Advocate appearing on behalf of the assessee, and this was not controverted by the learned Advocate appearing on behalf of the Department, that the High Court in another case has already taken the view that when a resale is made by an assessee which is in the course of interState trade or commerce, it cannot be regarded as a resale within the State and hence such resale would constitute a breach of the Declaration given by the assessee to the selling dealer so as to attract the applicability (sic) and the purchase price paid by the assessee would consequently be liable to be included in the taxable turnover of the assessee. It would therefore, argued the learned counsel for the assessee, be futile to drive the assessee to the procedure of appeal and revision and then a Writ Petition to the High Court. This contention urged on behalf of the assessee had force and we accordingly granted special leave and entertained this appeal. Similarly, we granted special leave in the other cases as well and hence those appeals are placed before us along with this appeal.